Benjamin H. Klein

LAW OFFICES OF PAUL A. LANGE, LLC

80 Ferry Boulevard

Stratford, CT 06615

Phone: (203) 375-7724

Fax: (203) 375-9397

bhk@lopal.com

UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC

Pro-Flight Aviation, Inc.

Complainant,

v. Docket No. 16-15-03

City of Renton, Washington

Respondent.

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PRO-FLIGHT AVIATION, INC.’S ANSWER IN OPPOSITION TO RESPONDENT’S 

MOTION FOR LEAVE TO FILE REPLY

Complainant Pro-Flight Aviation, Inc. (“PFA”), by and through the undersigned counsel, 

and pursuant to 14 C.F.R. § 16.19(c), hereby files this Answer in Opposition to the Motion for 

Leave to File Reply (“MFL”) filed by the City of Renton, Washington (“City” or “Respondent”) 

on June 15, 2015, and in support thereof, states as follows: 

INTRODUCTION

Because reply briefs are not expressly contemplated or permitted by the rules governing 

Part 16 proceedings, Respondent seeks permission to file a Reply to PFA’s Answer to 

Respondent’s Motion for Summary Judgement (“Answer”), ostensibly on the basis that the 

Answer contains “significant mischaracterizations of the record.” MFL at 1. However, 

Respondent does not use the Proposed Reply Brief (“Proposed Reply”) attached to the MFL to 

correct “mischaracterizations of the record” (there are none), but rather to dispute certain facts 
2

as alleged by PFA, and to restate its unavailing legal argument that Boeing is engaged in 

“aeronautical activities” at RNT. To be sure, there are significant, material factual disputes 

between PFA and the City, as well as disagreements over the relevant law; however, Respondent 

provides no new facts or legal argument in its Proposed Reply. Instead, it simply uses the 

Proposed Reply as an opportunity to take a second bite at presenting its own spin on factual and 

legal disputes of which the FAA is already well aware. Accordingly, because the Proposed 

Reply does not present any new evidence, law, or “corrections of the record,” but rather is an 

impermissible attempt to have the last word on what are already well-developed legal and factual 

disputes between the parties, Respondent’s MFL should be denied. 

PFA Did Not “Mischaracterize the Record” When it Correctly Stated that its Lease 

Application was Denied by Respondent Before the City Council Met to Vote

Respondent claims, incorrectly, that the Answer is the first time that PFA has argued that 

Respondent rejected PFA’s lease application for the 760/770 Parcels in favor of Boeing before 

the City Council voted on the issue, and that because of this undisputable fact, the outcome of 

the City Council’s vote was a foregone conclusion. In fact, the Complaint clearly and 

unequivocally alleges that Respondent rejected PFA’s lease application before the Transportation 

Committee met to vote on the matter. Complaint ¶ 27. PFA also asserts that when the 

Transportation Committee did meet, its deliberations were cursory, and that when the City 

Council met to vote on August 5, 2013, it approved the Boeing lease without further discussion. 

Complaint ¶¶ 28-29. Accordingly, the Answer is not the first time that PFA alleged that 

awarding Boeing the lease for the 760/770 Parcels was a foregone conclusion before the City 

Council voted; thus, Respondent’s Motion for Leave to File a Reply on this basis should be 

denied. 
3

Respondent takes great umbrage at the notion that PFA’s lease application for the 

760/770 Parcels was effectively denied before the Renton City Council met to vote; however, 

while the City might dispute this allegation, it has pointed to no “mischaracterization of the 

record” by PFA on this point. Instead, Respondent provides a lecture on the proper functioning 

of a tripartite government – arguing that the clear and unequivocal rejection of PFA’s application 

found in a letter from Respondent dated July 24, 2013 (“July 24th Letter”) contained nothing but 

the recommendation of one branch of government that was not empowered to decide the matter. 

MFL at 4. 

However, the July 24th Letter, which is the most probative piece of unbiased evidence on 

this point, belies Respondent’s claim in this regard. The rejection of PFA that is contained 

therein is unambiguous and not made contingent on any future action or deliberation by another 

municipal body. See Complaint, Ex. 10. The July 24th Letter does not state that the City’s 

decision to approve the Boeing application is merely the recommendation of but one branch of 

government, or that the City Council would have the ultimate say on the matter. To the contrary, 

the July 24th Letter presents the decision to award the lease to Boeing as a fait accompli – an 

unsurprising outcome given the events that preceded it.

Contrary to Respondent’s assertion in the MFL, PFA has produced significant evidence

regarding the events that preceded the “vote” by City Council, all in support of PFA’s allegation 

that Boeing’s award of the lease for the 760/770 Parcels was a foregone conclusion. Such 

evidence includes, but is not limited to, the following:

 Airport Manager Zulauf informed PFA in April 2013 that the 760 Parcel was not 

available at the same time he was negotiating with Boeing its lease. Complaint ¶ 

23; Complaint, Ex. 15, pg. 2-3.
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 In early-June 2013, Mr. Zulauf informed PFA that the City had decided to lease 

the 760/770 Parcels to Boeing and discouraged PFA from submitting an 

application. Complaint ¶ 25.

 On July 24, 2013, Respondent sent PFA a letter informing it that its application

for lease of the 760/770 Parcels had been rejected in favor of Boeing’s. 

Complaint ¶ 27, Complaint, Ex. 10.

 On July 25, 2013, after a short discussion, the Transportation Committee of the 

City Council approved the Boeing lease application. In reaching the decision, 

Councilmember Persson simply stated, “Well, if it comes down to you (PFA) or 

Boeing, I have to go with Boeing.” Complaint ¶ 28.

 Without any discussion or consideration of the PFA lease application, the Renton 

City Council Committee of the Whole approved the Boeing lease on August 5, 

2013. Id. ¶ 29.

All of the above provides evidence in support PFA’s allegations that: (1) Respondent 

misled PFA about the availability of the 760 Parcel and then tried to dissuade it from submitting 

a lease application; (2) Respondent’s concealment of 760’s availability, and its attempt to 

discourage PFA from submitting a lease application, was followed by its rejection of PFA in 

favor of Boeing in the July 24th Letter; (3) the Transportation Committee rubber-stamped the 

City Administration’s decision in this regard; and (4) the City Council Committee of the Whole
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accepted the Transportation Committee’s recommendation without deliberation or discussion of 

PFA’s application.

1

Again, Respondent may dispute these material facts, but it has pointed to no “record” 

evidence that has been mischaracterized by PFA on this point. Indeed, the only record evidence 

submitted by Respondent is the self-serving affidavits of the members of the Transportation 

Committee. Accordingly, because Respondent does not use the Proposed Reply to “correct 

mischaracterizations of the record,” but rather to dispute PFA’s allegations, which were well 

known to Respondent when it filed its Motion for Summary Judgement, the MFL should be 

denied.

PFA Did Not Mischaracterize the Record When it Correctly Stated that The Old 

Restaurant Site Is Not Viable for Transient or Local Tie-Downs

In arguing that the Old Restaurant Site is a viable alternative for PFA to the 760/770 

Parcels, Respondent once again merely restates its position regarding a well-defined factual 

dispute. PFA asserts that this site is not viable, and points to its completely impractical location 

outside of the Airport fence at the far north side of the Airport, as well as Deputy Public Works 

Administrator Doug Jacobsen’s acknowledgement to Bernie Paholke that the costs involved in 

 

1 Respondent and its representatives repeatedly imply that PFA should have attended the City Council 

vote on the Boeing lease on August 5th in order to argue its case, falsely suggesting that there was actual 

deliberation on the issue at this meeting. MSJ at 13; Declaration of Marcie Palmer ¶ 18. Video of the 

meeting contradicts this claim, and underscores PFA’s argument that Boeing’s approval was a foregone 

conclusion. There was no debate on whether the Boeing lease should be approved, and no discussion of 

PFA’s competing application. Councilmember Palmer stated that Boeing’s lease of 760-770 was a “winwin” for all involved. http://streaming.rentonwa.gov/ondemand/citycouncil/2013/august/cc-08-05-

2013.aspx (starting at 54:00).
6

developing the space for tie-downs was likely not worth it. Answer at 12, 24; Paholke Dec.

(attached to Answer) ¶ 18. 

For its part, while admitting that the Old Restaurant Site is not currently configured for 

PFA’s needs (MFL at 6), Respondent points to the fact that it has identified a consultant to

prepare “a design and cost analysis for the property,” – a claim seemingly meant to be indicative 

of some future, potential viability.

2 Again, Respondent points to no “mischaracterization of the 

record” by PFA and the evidence submitted in Respondent’s Proposed Reply only lends support 

to PFA’s claim that the Old Restaurant Site is simply being offered as a red herring, when it is

not currently, nor likely ever to be suitable for PFA’s needs.3 Accordingly, since Respondent 

provides no new evidence and points to no “mischaracterizations of the record” by PFA 

regarding the suitability of the Old Restaurant Site, or any of its other alternative proposals, the

MFL should be denied.

 

2

If Respondent is serious about developing the Old Restaurant Site, it begs the question of why it 

would not be more appropriate to use the space to park Boeing aircraft since: (a) unlike PFA, Boeing’s 

parking needs do not appear to be location dependent; and (b) Boeing has no current need for the 760/770 

Parcels (as evidenced by the fact that it has not occupied them in the two years since its lease first began), 

and thus can wait for Respondent to work through the design and development process of the Old 

Restaurant Site, which Respondent estimates will be complete by July 2016. According to Boeing, the 

first 737MAX will not roll off the assembly line until the end of the year. 

http://boeing.mediaroom.com/2015-06-16-Boeing-Focuses-on-Record-Delivery-Pace-AirplaneDevelopment-Programs

3 Another red herring offered by Respondent concerns 9 tie-downs that it allegedly controls on 

the east side of the Airport, across the active runway from PFA. Even if these spots were available (and 

Respondent hedges on this point, see Wilson Declaration attached to MFL ¶ 8), they are completely 

unsuitable for PFA’s fleet of training aircraft, or for PFA’s transient customers, particular jet aircraft. It is 

a 1.7 mile journey from PFA to the tie-downs on the east side of the Airport – one way. See Complaint, 

Ex. 11. 
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Boeing is Not Engaged in Aeronautical Activity

PFA agrees with Respondent that “getting the law correct” on the question of whether 

Boeing is engaged in aeronautical activity at RNT is “essential.” MFL at 2. However, 

Respondent’s Proposed Reply does not contribute to this mutually-held goal. PFA has argued, 

both from a legal and public policy perspective, that Boeing’s activity at RNT should not be 

considered “aeronautical” as the term applies to the obligations imposed on all airport recipients 

of federal grant money. See Answer § 2.A. It made such arguments in response to those asserted 

by Respondent in its MSJ. In the Proposed Reply, Respondent offers no new arguments, and 

points to no new law on this point; it merely seeks the last word by restating the same exact 

argument contained in the MSJ. Accordingly, the MFL should be denied. 

CONCLUSION

Based on the foregoing, Complainant respectfully requests that Respondent’s Motion for 

Leave to File Reply be denied. 

Dated June 24, 2015.

Respectfully submitted,

 

 /s/___________________

 Benjamin H. Klein 

LAW OFFICES OF PAUL A. LANGE, LLC

 80 Ferry Boulevard

 Stratford, CT 06615

Phone: (203) 375-7724

 Fax: (203) 375-9397

 bhk@lopal.com

Attorney for Complainant
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CERTIFICATE OF SERVICE

I hereby certify that I have this day caused the foregoing Answer in Opposition to be 

served electronically, with prior written consent, on the following:

Zanetta L. Fontes

Senior Assistant City Attorney

1055 South Grady Way

Renton, WA 98057

zfontes@rentonwa.gov

Dated June 24, 2015

 _/s/_________________________

Benjamin H. Klein